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IU professor: Legal education in the US needs to change

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Legal education in the United States needs to change.

Indiana University Maurer School of Law Professor William Henderson makes that statement in the first line of his recently published research paper, “A Blueprint for Change,” which also offers a plan to transform legal education to better fit the changing legal marketplace.

Henderson argues that the legal market is no different than any other market in that it is subject to the laws of supply and demand. Right now, supply is vastly outstripping demand.

blueprint-piechart.gifThe law professor paints a grim picture of the current state of legal employment. For the class of 2011, Henderson notes that nine months after graduation only 55 percent had found full-time, long-term work requiring bar passage. Others found work for which having a law degree was an asset, but for a significant number bar passage and a J.D. offered no advantage (or salary boost). Couple this with increases in student debt – which is now on average approaching six figures for many graduates – and you have the makings of a crisis.

These statistics follow several years of downward trends in the legal job market. Henderson said his own interest in the economic aspects of the legal world began when he was in law school, as he saw many of his classmates making decisions about employment that, he believed, betrayed a lack of understanding of the legal profession as a market.

As a professor, he began exploring the topic more academically in the mid-2000s. For a few years, a significant percentage of entry-level associates were getting very high salaries, while another chunk received much more modest starting salaries.

“I looked at it from kind of a labor market economist perspective and I said, ‘this is a broken market. Markets don’t clear this way,’” he told Indiana Lawyer. “People are either overpaying for some talent or underpaying for others, but this is not stable. I wanted to understand what was driving that difference.”

In his “Blueprint,” Henderson shares not only his analysis of the market, but a plan to begin to address some of the problems with valuation of legal services. His focus is primarily on law schools, but his plan will require cooperation from a variety of legal sectors in order to achieve success.

Law school viability is dependent on three factors, Henderson writes. Schools must have students willing to enroll, then a way to finance student education, and finally a market willing to employ graduates. Of these three, the last is the driving force. “Without jobs for its graduates, any law school enterprise will eventually fail. The students and financiers will wise up and abandon the school and its faculty,” Henderson writes.

While there is still a market for traditional legal services, Henderson argues that the market has been changing. The legal services market is being gradually replaced by those offering legal products and inputs which do not require the same input from “expensive, artisan-trained lawyers.”

He points to research by British lawyer Richard Susskind, who has identified a transition from traditional courtroom representation to commoditized legal services developed in conjunction with technology advances. “These changes are made possible by identifying recursive patterns in legal forms and judicial opinions, which enables the use of process and technology to routinize and scale very cheap and very high quality solutions to the myriad of legal needs,” Henderson writes.

There is growth in this sector, he notes, but much of the growth is happening overseas in places like India. Law schools in the U.S., by and large, have not begun training with these industries in mind.

While more research needs to be done, Henderson said it is important that law schools begin to develop mechanisms to be more responsive to changes in the market. He advocates three steps he believes will help law schools adjust: 1) form consortia with schools, alumni and employers to focus on labor market outcomes; 2) construct a competency-based curriculum that more accurately targets the needs of the legal marketplace; and 3) identify a small percentage of faculty and administrators (he says 12 percent) to spearhead reworking the system.

The idea is to quantify the skills the market is willing to pay for, then figure out how to teach those skills in a way that offers increased value. Henderson acknowledges that this plan is a work-in-progress, and he advocates building feedback loops into the system to allow for continuous evaluation and improvement of curricula.

Brian Tamanaha, professor at Washington University Law School in St. Louis and author of “Failing Law Schools” (2012), read Henderson’s proposal and thought it offers some strong insights and solid ideas for moving forward, although he noted a couple of reservations.

First, he said that identifying and teaching the competencies around which Henderson’s new curricula would be designed is a difficult proposition. “I’m not saying it can’t be done, but I am saying no one knows how to do it,” Tamanaha said.

A related question, though, is figuring out how much employers actually value these competencies. Tamanaha notes that large law firms now make offers before a student has finished the second year of school. He said he believes that it is possible law firms view schools as a sorting mechanism – a student who is smart enough to get in and do well the first year can handle the work. What students actually learn in terms of skills and competencies in school does not seem to play as big a role in hiring as the caliber of the school and the way the student performs in the first year.

Henderson’s theory is that if a school produces students with more competencies necessary for the marketplace, they will be more competitive and the school will benefit in the long run. “For him to be right requires that employers care about these things,” Tamanaha said. And maybe they will – he conceded that there is uncertainty that comes with any change of this magnitude.

Henderson also acknowledges that there will be some significant obstacles to putting a plan like this into place, not the least of which will be convincing traditionally minded faculty that the mode of legal education must shift to meet a changing marketplace.

He said his biggest worry is how well existing schools will rise to meet the challenge. “I can’t tell you how much I worry about that,” he said. “Now is the time when we need decisive leadership that figures out how to balance constituencies and makes hard decisions, and knows how to hold an institution together during rough times.”

Tamanaha agrees. “It is hard to change,” he said, noting that the kinds of competencies Henderson advocates teaching will require a different kind of person to teach them. Schools have for several decades been focusing on hiring scholars and academics who have little experience putting their legal skills to practice.

“If I were to start up a new school today, I wouldn’t hire what we’re hiring now, which is, people from elite law schools who get one-year clerkship and go into teaching,” Tamanaha said. “I would go in the direction of people who are smart and capable but experienced.”

Henderson said a number of law schools and faculty have expressed interest in his proposal. He and others have already taken steps toward forming the type of consortium he advocates, although he declined to name schools or individuals involved. Time will tell how well his proposals work on the ground, he said, but it is better to try something to address the shifting market than to ignore what is happening.

“Lawyers have a hard time believing that, yes, even law changes,” Henderson said. “We think that this is really extraordinary, but it is just part of history. There is nothing exceptional happening here. But it feels traumatic when it’s in your sector.”

Henderson’s paper, published in the Pepperdine Law Review, may be downloaded free of charge at http://ssrn.com/abstract=2202823.•
 

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  1. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  2. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  3. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  4. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  5. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

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